THE VISUALIZED OPENING STATEMENT -
LESS TELL AND MORE SHOW
by William S. Bailey
Fury Bailey
710 – 10 th Avenue East
Seattle , WA 98102
(206) 726-6600
billb@furybailey.com
If Abraham Lincoln were transported by time machine from his heyday as a trial lawyer in the 1850s into a present day courtroom, he would not need any explanation on the process of a “modern” trial - the basic elements would be much the same as he knew them 140 years ago. This is not surprising, as the ritual of a jury trial within Anglo-American jurisprudence has remained relatively unchanged for centuries. Starting with the black robes of our judges and the Grecian temple architecture of many of our courthouses, the trial process has always strongly resembled a secular religious ceremony. In much the same way that practitioners of classical martial arts such as judo rigidly follow ancient ceremonial dances, trial lawyers follow their own preordained rites before the jury.
The traditional format has become more of a horse and buggy era anachronism in the post-World War II electronic age. Despite the de facto monastery walls of legal tradition to deter “contamination” by the outside, jury trials increasingly must take into account and incorporate the revolutionary shifts in the process of communication and information presentation. After all, jurors are highly motivated outsiders to the court process who are charged with making very difficult decisions, including matters of life and death. It is neither fair or appropriate to deny jurors access to information presented in the most effective way. Slavish devotion to the historical trial ritual must give way to newer and more vivid ways of information presentation. Nowhere is this need more evident than in the traditional form of opening statements at trial.
THE CRUCIAL IMPORTANCE OF AN EFFECTIVE
OPENING STATEMENT
Though trial practice gurus differ in many areas, there is near unanimity on the proposition that the opening statement is the most important single part of the trial. Thomas Mauet's observations in this regard are representative:
The opening statement will be your first opportunity to tell the jury what the case on trial is all about. As such, it is a critical part of the trial . . . opening statements often make the difference in the outcome of the case. Studies have shown that jury verdicts are in the substantial majority of cases, consistent with the initial impressions made by the jury during opening statements. As in life generally, the psychological phenomenon of primacy applies, and initial impressions become lasting impressions. 1
The conventional wisdom about the critical importance of an effective opening statement is not mere punditry and is backed by impressive statistics. For example, the landmark study by Kalven and Zeisel showed that as high as 80% of the jurors ultimately made up their mind during opening and did not change it during trial. 2 Generally, once human beings make up their minds on a subject, later inconsistent information may affect the strength of their conviction but it will not change their mind in any fundamental sense.
THE TRADITIONAL APPROACH TO OPENING STATEMENT -
A WASTED OPPORTUNITY
Consistent with the horse and buggy traditional approach to the trial ritual, the usual opening statement in a case is a throw-back to pre-twentieth century means of communication. It largely consists of a more-or-less dry lawyer talk about what the evidence will show with very little, if any, visual evidence. Trial practice textbooks frequently describe opening statement as exclusively an appeal to the ears of the jurors :
Painting a picture in the mind's eye through the use of words. 3
These “how to do it” sections on opening in trial practice textbooks are phrased nearly exclusively in the verbal approach:
Tell the jury . . . . It is a statement . . . If [the jury] heard nothing more . . . 4
Any reference to what the jury sees or is shown in opening statement is at best spliced on as an afterthought in most trial practice textbooks and usually receives a lukewarm endorsement at best:
Exhibits in opening statements are a mixed blessing. On the one hand, they can be an effective tool to make key facts clear for the jury. On the other hand, exhibits can also distract the jurors' attention from you and once seen, will no longer be new evidence when reused during the trial. 5
However, using a media based analysis, the traditional opening statement described above is a throw-back to the nostalgia days of radio - all talk, with nothing for the eye to see. This is likely to miss the mark as the jury of the 1990s no longer spends their evenings listening to the thundering hoof beats of the Lone Ranger on the parlor radio. They are watching television and video movie rentals instead. Any lawyer who uses the “radio days” approach to opening statement is wasting his/her most significant opportunity to persuade the jury through visual means.
VISUAL EVIDENCE IS THE MOST EFFECTIVE
Twenty-five years ago, Marshall McLuhan offered an analysis of why visual information is much more persuasive. His thoughts still hold true today:
Most people find it difficult to understand purely verbal concepts. They suspect the ear; they don't trust it. In general, we feel more secure when things are visible , when we can ‘see for ourselves.' We admonish children, for instance, to ‘believe only half of what they see , and nothing of what they hear ' . . . We employ visual and spatial metaphors for a great many everyday expressions . . . We are so visually biased that we call our wisest men vision aries or see rs! 6
In addition to the psychological and cultural bias of most jurors in favor of visual evidence, it is much more efficient means of communication, enhancing the jury's ability to follow what you are saying in the opening. Alan Morrill recognized this nearly 20 years ago:
With anything more than a simple set of facts involving an intersection collision, it is probably safe to say that following opening statements through words alone, not one juror has a clear picture in his mind as to how the accident occurred. It is a good bet that about half the jury is completely lost, perhaps some of them have a completely erroneous picture created in the mind's eye. 7
The time is long overdue for fundamental change in the traditional approach to opening statement, one which turns it into a predominantly visual medium with verbal accompaniment. The effective trial lawyer of the 1990s works hand in hand with a creative consultant or art director to devise ways of visualizing the key points for opening to both persuade and inform jurors. The few attorneys who have already taken this approach have experienced dramatic success.
The forms and format of visual evidence will vary with the proof problems unique to each individual case. Computer animation may be the key to success in one case and a waste of money in another. A simple storyboard may be more effective than a filmed accident reconstruction. There are no fixed rules other than that the lawyer should focus on ways to but the case across visually from the moment it comes into his/her office and plan a legal strategy to make sure that all of these visuals are available for use in opening statement. This article will now discuss approaches in how to facilitate this goal.
THE OPPOSITION RESPONSE - KEEP EFFECTIVE VISUALS
OUT OF OPENING AT ALL COSTS
Basic “a picture is worth a thousand words” instinct tells any trial lawyer than an effective visual display can galvanize a jury to a particular point of view. Significant use of visual evidence is definitely seen as a potential threat by the other side, and correctly so. As a young public defender, I noticed very quickly that even my fairly primitive, homespun trial visuals were of great interest to made my opponents. Whenever I came into court with a black artist's portfolio in hand, in addition to a briefcase, I got at least a second look from the prosecutor.
An advocate who intends to use effective visual evidence in opening statement can count on determined opposition and howls of exasperated outrage from the other side. There will be no gentleperson's agreement stipulating to the use of such visuals. The representative flavor of what opposition response can be expected is drawn from a relatively recent case that I tried:
I think we should back up and look at this for a second. This is flat-out bizarre . . . This is utter off the wall stuff . . . I have never seen anybody in court trying to proceed in such a fashion . . . This is not part of the framework within the court system. I want it clear that I would really take violent exception to this . . . He shouldn't be allowed to do [this] in opening statement . . . That is way beyond the realm of acquainting the jury with what the evidence and issues are . . . To allow him at opening to bandy these props around is representative of what is out there. I object to. 8
THE JUDGE'S ROLE
The earlier discussion about the unchanging trial ritual does not presuppose that judges are opposed to the innovative and creative use of visual evidence in opening statement, or anywhere else in trial. Far from it.
One of the occupational hazards of being a judge is the daily ear scalding and boredom of enduring droning lawyers who always start out saying, “Just briefly Your Honor . . . .” An intelligent trial judge knows that bored, inattentive jurors do not promote decision quality within the court system. Judge Warren Wolfson of Chicago , Illinois is one of many judges who sees visual evidence as a way to assist jurors:
I'm a big believer in blow-ups. I think everything ought to be blown up, especially photographs . . . [Often] [t]he jury hasn't the slightest idea what the lawyer is talking about. Important documents ought to be blown up, or put on slides and projected. Models of the body, when injuries have to be shown, ought to be brought in. Lawyers can't rely on words only. Words don't have the impact of ‘share and tell.' Juries will retain best, and believe best, what they see and hear at the same time. Most lawyers just don't know how to do that. 9
In fact, most trial practice textbooks state that judges will be reasonably sympathetic to the use of visual evidence in opening statement:
Most judges in exercising judicial discretion will permit the use of visual aids if it can be demonstrated in advance that these aids can properly be used and it is counsel's intention to use them during the taking of evidence. 10
Echoing the same type of sentiments expressed by Judge Wolfson, the higher courts of many states have enthusiastically favored the use of demonstrative evidence at trial. For example, in Norris v. State 11 the Court of Appeals of the State of Washington approved a series of drawings prepared by a professional artist of the scene of an accident where no photographs were available. Each drawing was identified and authenticated at trial by witnesses who supplied the artist with foundational information. The Court approved of this use of demonstrative evidence in sweeping terms:
The State's objection seems largely motivated by the novelty of the evidence. Novelty in an exhibit, however, does not make it inadmissible. 12
The lack of use of visual evidence in opening statement is not the result of reluctant judiciary, but rather the failure of imagination on the part of the trial bar.
SCOPE OF PERMISSIBLE EVIDENCE IN
OPENING STATEMENT
As a general matter, authentication and identification of visual evidence for use in any portion of the trial including opening is straight-forward and simple. In both state and federal courts, the only authentication needed for such evidence is testimony of a witness with knowledge of the event or able to describe the process contained within the visual evidence, concluding that it is a reasonable representation of the subject matter. 13 Anyone with first-hand knowledge of the subject of the visual evidence can provide the necessary foundation. 14
It is well established that any party in a lawsuit may, in opening statement, refer to admissible evidence to be presented at trial. 15 The party seeking to admit relevant and properly identified visual evidence has a right to introduce it. 16
Federal Rule of Evidence 611(a) and its state court counterparts gives the trial court broad authority over the mode and order of presenting evidence. The rule requires only that the court's control be “reasonable” and that it serve the general objectives of ascertaining the truth, avoiding needless consumption of time and protecting witnesses from harassment and embarrassment. 17
Similar to Federal Rule of Evidence 102, a trial court's discretion to determine the presentation of evidence in specific instances is not limited by ER 611(a). The purpose of ER 611(a) is only to define general guidelines for the exercise of judicial discretion at trial:
Rule 611 deals with matters that are known virtually by instinct by every experienced trial lawyer and judge. Rule 611(a) grants the trial court broad discretion over the proceedings to ascertain the truth, to avoid needless consumption of time, and to protect witnesses from harassment and embarrassment. 18
In addition to the broad grant of discretion to the trial court on the admission of demonstrative evidence generally, appellate decisions are of limited precedental value in this area:
The court's decision invariably turns on the articular facts and circumstances of the individual case, and the trial court is affirmed with little or no discussion in the vast majority of cases. 19
The discretion which inheres in the trial court makes careful planning and foundation for all demonstrative evidence essential, particularly when it is sought to be used in opening statement. Use of a formal pretrial admission hearing to affirmatively admit demonstrative evidence for use in opening is invaluable. The remaining portion of this article will discuss this technique.
USE OF PRETRIAL ADMISSION HEARING TO PERMIT
SHOWING OF VISUAL EVIDENCE IN OPENING
Invariably, many lawyers take a casual approach to how and when the necessary foundation for visual evidence is to be laid. There is a pervasive tradition of sloppiness in this regard. It is common for a lawyer to bring up such admissibility questions at trial on an ad hoc basis, often just before the court is ready to bring the jury back in after a recess. Such an approach is a virtual guarantee of a hostile and inattentive reception by the judge. In addition, as discussed previously, if the visual is effective, it is certain that the opposition will do everything short of setting themselves on fire with gasoline and a match to urge the judge to keep it out of evidence. If you are off on the wrong foot with the trial judge by failure of adequate planning, you make your opponent's job in this regard an easy one.
By tradition, lawyers are accustomed to filing pretrial motions in limine to keep out evidence that is perceived as unfairly prejudicial. A formal motion in this regard is appropriately heard before the jury is impaneled, along with an accompanying brief. The court is then able to sort out these admissibility questions in a more structured and attentive manner before the pressure of a waiting jury is an issue.
Yet, the same lawyer who dutifully files a motion in limine to keep out evidence rarely thinks to prepare an equivalent pretrial motion to get in evidence prior to opening statement. This is unfortunate, because what you get in before trial starts is every bit as important as what you keep out, particularly when the requirements of an effective opening statement are considered.
The usual consequence of not setting up a formal pretrial hearing to lay the foundation for visual evidence is that the court will not permit this evidence to be used in opening, deferring a decision on it until later in the trial. By that point, later may be too late as far as persuading the jury, particularly if the opponent has taken the necessary steps to have an effectively visualized opening statement. Like the third little pig who made his house out of bricks, you have to be able to plan ahead and lay your foundation for visualize evidence to be used in opening brick by brick. Otherwise, a very effective and expensive piece of evidence may remain locked in your briefcase as a rejected effort at a time when it could do you and your client the most good.
A CASE STUDY - HOLMAN V. MULLAN 20
I recent case is instructive on both the procedure and the possibilities of using effective visuals in opening statement to persuade a jury. Todd Holman was 21 year old college student and gifted athlete who was seriously injured while a passenger in a left-turning Audi Fox. An oncoming Honda Acura T-boned the Audi, literally splitting the vehicle in two pieces. In the ensuing lawsuit, the oncoming driver's insurance company made a reasonable settlement based on evidence that the Acura was exceeding the posted speed limit, going 60 m.p.h. in a 30 m.p.h. zone. However, the insurance company for the driver of the left-turning Audi refused to admit fault for this accident under the deception doctrine, claiming that the speed of the oncoming Acura deceived of the driver into thinking that a left turn could safely be made.
When boiled down to the most critical element, the liability in Holman v. Mullan hinged entirely on what the driver of the Audi could see as he began his left turn. As the disfavored driver under the rules of the road, the jury would be most interested in the question of whether the driver of the Audi should have seen the oncoming Acura and known to yield the right of way. To this end, plaintiff's counsel then retained a competent accident reconstructionist and an experienced filmmaker to create and film visibility studies under similar conditions as the night of this accident, using exemplar cars. Needless to say, the end result of this effort was a fifteen-second film that was extremely damaging to the deception doctrine defense of the Audi driver. It showed that the Audi driver could have clearly seen the oncoming Acura from at least three blocks away and never should have attempted the left turn.
Once the filmed visibility study recreated the view available to the defendant driver, the question needed to be asked where this evidence would be most effective at the trial itself. In asking this question rhetorically without reference to what is “usually done,” my answer was “opening statement, of course.” Of course, the traditionalist view is that a piece of evidence such as this “simply isn't allowed” in opening statement. Yet, I could find nothing in reported cases forbidding the use of visual evidence of this type in opening statement. So, why not? Instead of always taking the rear view mirror approach of “where is the precedent?” I devised a plan to try and preadmit the videotape of the visibility study for use in opening statement.
In Holman v. Mullan , a formal pretrial motion was filed before the trial judge to preadmit the filmed visibility study as evidence for all purposes, including its use in opening statement. Both the accident reconstruction expert and the filmmaker were scheduled to appear at the pretrial hearing for foundation purposes, even though they would later testify in the trial as well. Although this added some extra expense to the expert witness budget, this was money well spent because of the potential outcome of using this evidence where it would do my client the most good, in opening statement.
In Holman v. Mullan , the accident reconstruction expert's calculations were not challenged by the defendant's experts. They were presented in affidavit form as to the findings and conclusions for foundation purposes. This affidavit and the accident reconstructionist's deposition were submitted to the trial judge and relied upon by the filmmaker in his testimony at the pretrial hearing.
The defendant made a spirited shot-gun attack at the pretrial hearing in the area of the filmmaker's testimony. Plaintiff's counsel laid the foundation for the visibility study in some detail. The procedures under which the film was made were thoroughly discussed, including the type of camera equipment used, film speed and type, equivalency of weather and lighting conditions and special circumstances of filming under nighttime conditions. (This accident occurred at 10:00 o'clock in the evening with a dark sky.)
My opponent conducted an extended cross-examination of the filmmaker about technical limits of night photography. He also brought his own witnesses to the pretrial hearing who challenged the accuracy of the final product. These included a human factor's expert who stated that the camera in a fixed position “sees” more detail than a human being, whose eyes and head move constantly over time. The defendant also brought in another photography expert whose position was that night photography involves manipulation in the film processing laboratory which makes it an inaccurate representation of actual lighting conditions.
The pretrial hearing on admission of the video took nearly an entire judicial day in Holman v. Mullan and was completed before the jury selection began. Having been forewarned that the pretrial hearing on this evidence would be hotly contested, the court scheduled an appropriate amount of time and allowed a complete opportunity to lay the necessary foundation. At the conclusion of the hearing, the court determined that the visibility study was accurate and permitted it to be shown in opening statement. From that point on, the case was over and the defendant knew it.
The jury saw the video in opening statement and knew through their own visual sense that the defendant should not have attempted the left turn in question prior to the collision. They saw the video on two other occasions during the trial, once during the testimony of the accident reconstruction expert and again when the filmmaker appeared before the jury to describe the process of making the visibility studies. The court also made the video and a tv monitor available to the jury for its use in deliberations. Post-trial interviews revealed that the video in opening statement did have the significant impact that all parties believed it would and assisted the jury in developing accurate perspective with their own senses on how to view the liability evidence in the case.
CONCLUSION
Given the acknowledged importance of the opening statement and the power of visual evidence, it is astonishing that more effort has not been made in visualizing the key points in a case and using this information during opening statement. The phrase, “show me, don't tell me” applies with particular urgency to opening statement where the jurors are the most attentive and likely to create a perspective through which they will view the entire case. If you plan effective visual evidence in your case and lay an appropriate foundation for it at a pretrial admissibility hearing, your chances of fully protecting your client's rights and winning the case are greatly enhanced.
William S. Bailey practices with the Fury Bailey law firm in Seattle , Washington
© All Rights Reserved
1 THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES, 41 (3d Ed., 1992)
2 HARRY KALVEN and HANS ZEISEL, THE AMERICAN JURY (1966)
3 ALAN J. MORRILL, TRIAL DIPLOMACY, 22 (2d Ed., 1974)
4 JAMES W. McELHANEY, EFFECTIVE LITIGATION (1974)
5 THOMAS A. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES, 41 (3d Ed., 1992)
6 MARSHALL McLUHAN and QUENTIN FIORE, THE MEDIUM IS THE MASSAGE, 117 (1967)
7 ALAN J. MORRILL, TRIAL DIPLOMACY, 26 (2d Ed., 1974)
8 Washburn v. Beatt Equipment Co. , 120 Wn.2d 246, __ P.2d __ (1992). Taken from Pretrial Hearing remarks of defendant's attorney on August 7, 1990 at pp. 14-16 of trial transcript.
9 8 TRIAL DIPLOMACY JOURNAL 7 (1985)
10 ALAN J. MORRILL, TRIAL DIPLOMACY 26 (2d Ed., 1974). Thomas Mauet is even more expansive and states, “If the exhibit is not in evidence, tell the judge you wish to use it during your opening statement and that you will establish a proper foundation for the exhibit during the trial. Today, almost all judges will allow the use of such exhibits under these circumstances.” THOMAS J. MAUET, FUNDAMENTALS OF TRIAL TECHNIQUES, 47 (3d Ed., 1992)
11 46 Wn. App. 822, 733 P.2d 231 (1987)
12 46 Wn. App. at 827.
13 See , e.g., Kelley v. Great Northern Railway Co. , 59 Wn.2d 894, 371 P.2d 528 (1962).
14 See , e.g., State v. Hardamon , 29 Wn.2d 182, 186 P.2d 634 (1947); Kellerher v. Porter , 29 Wn.2d 650, 189 P.2d 223 (1948).
15 See , e.g., State v. Piche , 71 Wn.2d 583, 4th V.O. P.2d 522, cert. denied , 390 U.S. 912, 88 S. Ct. 838, 19 L. Ed.2d 882 (1967).
16 See , e.g., Kelley v. Great Northern Railway Co. , 59 Wn.2d 894, 371 P.2d 528 (1962).
17 See , e.g., TEGLAND, 5A WASHINGTON PRACTICE, §244 (1989).
18 TEGLAND, 5A WASHINGTON PRACTICE, §243 (1989).
19 TEGLAND, 5A WASHINGTON PRACTICE, §243 (1989).
20 Holman v. Mullan, No. 87-2-07199-1, (Wash., Pierce County Superior Court, March 30, 1992 )
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